The Adventure of 20 Years In Public Sector Labor Relations: 20 Years and Counting

"The Adventure of 20 Years In Public Sector Labor Relations: 20 Years and Counting"

by Phyllis N. Segal, Chair

Federal Labor Relations Authority

Washington, D.C. Anniversary Conference

June 14, 1999

Thank you for that kind introduction, Joe. And thank all of you for being here this morning. I realize you have already heard many introductions, but I hope you'll indulge me to add a few additional important ones - because I wouldn't want to begin this conference without them.

First, the two Authority Members with whom I have the pleasure to serve, Donald Wasserman and Dale Cabaniss. Dale, Don, and I have written a lot of case law together - and sometimes separately! Don came to the Authority in 1995, following a distinguished tenure at the American Federation of State, County and Municipal Employees. Dale joined the Authority in 1997 - bringing to our deliberations valuable experience from her years in the U.S. Senate.

You will hear from Don at lunch today, and both Dale and Don will be here throughout the conference -- I am sure, eager to meet and talk with you. I'd like to ask them to stand together and be acknowledged.

Next, and I hope your hands aren't getting too tired from applauding -- I'm now going to ask you to join with me in welcoming two former distinguished members of the Authority who have come back to be with us today.

Leon B. Applewhaite, one of the original Authority Members, who served from 1979-1983, and Tony Armendariz, who served from 1989-1997 - and with whom I had the pleasure of working during the final two of those years.

Now, this anniversary wouldn't feel complete without also welcoming back the men and women who have led the FLRA during the past 20 years.

We are fortunate that the very first Chairman of the FLRA is here -- Ronald W. Haughton, who served from 1979 to 1983. Ron, please stand and let us applaud to thank you for all the work you did in setting up shop.

Next, Jerry L. Calhoun, who served as FLRA Chairman from 1985 to 1988. Jerry, please also take a bow.

And last, but by no means least, I'm happy to introduce my immediate predecessor, Jean McKee, who chaired the FLRA from 1989 to1994. Jean, a warm welcome.

Finally, I'd like you to join with me in recognizing the real legacy of our past and present leadership -- the FLRA career staff, many of whom are seated in this room, a dedicated, committed, throughly professional group of individuals. I'd like to ask each of the FLRA staff members here this morning to stand -- representing both themselves and their colleagues who are back at our offices hard at work. I'm very pleased to lead THIS applause...

Well, we certainly have spent a fair bit of time greeting each other this morning.

Let me refocus our salutations for a moment in a different way -- and read to you the following message from Vice President Al Gore:

GREETINGS FROM THE VICE PRESIDENT TO THE FLRA'S 20TH ANNIVERSARY TRAINING CONFERENCES

"It is with great pleasure that I greet the participants in the 20th Anniversary Training Conferences of the Federal Labor Relations Authority. When President Carter signed legislation establishing the FLRA in January 1979, this was the first comprehensive reform of the Federal civil service system in the 20th century.

As we approach the new millennium, it is fitting to step back and look where labor relations has been and what changes the future will hold. Twenty years ago the FLRA established the groundwork for interpreting and enforcing the nation's labor laws relating to Federal employees. The FLRA continues to do so.

In addition, the FLRA is actively involved in assisting parties before it in resolving their own disputes. In recent years the FLRA has established an agency-wide program promoting collaboration and alternative dispute resolution, rewritten ... its ... regulations to incorporate principles of collaborative dispute resolution and has just been received a Hammer Award for reinventing its Unfair Labor Practice proceedings ....[and most recently has been named as a semifinalist for the 1999 Innovations in American Government awards.] In short, the FLRA has been a leader in working to create a government that works better and costs less.

I salute Chair Phyllis Segal, Member Donald S. Wasserman, Member Dale Cabaniss, General Counsel Joseph Swerdzewski, and Panel Chair Betty Bolden, and all FLRA employees for these efforts. Most important, I salute all of you gathered here at this event and thank you for all that you do to support the government of the American people."

Close quote!

You know, as we thought about ways to commemorate the FLRA's 20th Anniversary, we had fun considering a number of ideas. One that captivated us, for a while, was taking a cruise! Fortunately -- for those of you we wouldn't have taken with us - more prudent heads prevailed. And here we are -- instead of on the QE2, at a labor relations training conference ..... in the Ronald Reagan Building

While the choice of venue caused some of us to pause a bit, it really wasn't terribly hard to decide that the best way to recognize this Anniversary would be to convene this first-ever FLRA agency-wide training conference as our anniversary gift to you: the men and women who participate in the federal labor relations program - the people who rely on our agency to help you do your job well, by doing our job well.

Our primary goal today and tomorrow is to provide you with information to strengthen the skills with which you practice labor relations. But, since this IS, after all, our anniversary, I'd like to spend a little time with you this morning looking back over the 20 years since the statutory federal labor relations program, and the FLRA, were created.

Twenty years. I wonder how many of you in this room today, remember when the FLRA opened its doors in January 1979? Would you raise your hands? Is there anyone who was still in high school in 1979? Kindergarten? Well, I was well beyond high school, and I think my youngest child was already out of kindergarten ... when it opened its doors. Though quite a few of the our current staff started with the FLRA back in 1979.

As you can imagine, we've spent some time this year reliving a few of their memories. Like the blizzard of name and home address cases filed in the 80's and 90's, and heavily litigated all over the nation until the U.S. Supreme Court finally settled the issue in 1994.

And like the blizzard that hit Washington, D.C. on the very weekend when we moved into new headquarters - headlined at the time as the "snowstorm of the century!" Fortunately, it's not snowing today. But we are on the brink of a new century, and the FLRA is about to reach the grown-up age of 21.

The FLRA was born on January 1, 1979 - a week before Title VII of the Civil Service Reform Act took effect. We were created to replace two executive branch entities that had been responsible for administering the federal collective bargaining program that Presidents Kennedy and Nixon had set up by Executive Order.

Title VII -- more commonly known as the Federal Service Labor Management Relations Statute -- enacted this into law -- giving it more permanence, and more teeth. In doing this, Congress recognized that it was important to have an independent agency responsible for the Statute's implementation to assure that there would be a truly neutral tribunal to decide disputes between agency employers and unions.

When President Kennedy began all this by allowing labor unions to organize in federal agencies, some of you may remember his description of two people sitting in a boat together -- with one pointing a finger accusingly at the other, saying "your end of the boat is sinking". President Kennedy saw collective bargaining as a way to change this dysfunctional blaming dynamic. Unfortunately, however, the boat is still floating (or floundering!) around in some labor-management struggles today.

Let's develop President Kennedy's nautical image a bit more, and describe the FLRA as a port that was built for the boat to pull up to, so that the question being argued could be answered: just whose end IS sinking?

Well, 20 years of experience under the federal labor Statute has demonstrated that answering this question -- deciding who is to blame -- does not necessarily prevent the boat, or the people in it, from going down.

Both the FLRA's role over these past 20 years deciding disputes, and the effect of its decisions on whether the labor relationship sinks or swim illustrate significant changes in our agency since its creation in 1979.

To start: just what does it mean for the Authority to decide who is right between parties arguing different sides? This is, at its heart, a decision about what the Statute means, and how it applies to whatever it is that labor and management are arguing about.

Archibald Cox, talking about another labor statute, pointed out that labor laws often contain "calculated ambiguities and political compromises." And Cox's statement explains a lot about our Statute, as well.

As a result of these political realities, most people who read our Statute will agree that it is not the most clearly worded text ever written. Supreme Court Justice Breyer recently underlined this very point in a decision on whether our Statute requires mid-term bargaining -- or not. It has taken close to 15 years to reach what is now a near-final decision on this hotly-contested issue. Fifteen years -- that's 3/4s of the life of the FLRA!

Justice Breyer described the "ambiguity created by the Statute's use of general language that might, or might not, encompass various forms of mid-term bargaining" (Interior). Justice Scalia, when he was a Judge on the D.C. Court of Appeals, was even more pointed. He described the Statute as being complicated by its "confusing duplicity" (Scalia, AFGE, 1983).

The challenge of interpreting and applying the terms of our labor statute "in light of everyday realities" (Chevron), is the task "Congress delegated to the Authority." It has been one of the most complex challenges the FLRA has faced right from the beginning and is still grappling with today.

Almost immediately after the FLRA opened its doors, a flood of cases came into the regional offices and the Authority. This was before the FLRA was fully staffed, had moved into unified offices, or adopted its regulations.

You were looking for answers to questions about "what does this Statute mean?" "Is this an unfair labor practice?" "Is this proposal negotiable?" It was, and continues to be, the FLRA's job to provide answers -- not about what we as individuals would like the law to be, but about what we can responsibly interpret the Statute to mean. Fortunately, not all questions take 15 years to decide - but, regrettably, long delays in providing final answers have not been uncommon.

There were some early questions that were easy for the FLRA to answer, because they were "clear on the face" of the Statute. For many questions, however, decisional law interpreting and applying the Statute has taken many twists and turns. Sometimes because information and new arguments persuaded the Authority that its initial answer was wrong, and needed to be revised. Or because new decision makers were appointed to the Authority, or to the judiciary. Or because the federal courts that review Authority decisions decided that the Authority was wrong.

These twists and turns -- the lack of quick and stable answers to your questions over the past two decades -- must make your job practicing labor relations more difficult.

A study of Authority decisions published on the occasion of our 10th anniversary, emphasized this. After documenting what he found to be a troubling high percentage of Authority decisions reversed by the courts, American University Professor David H. Rosenbloom described the FLRA as "an agency that gets no respect."

And he went on to state his "clear conclusion" that "labor relations in the federal service would benefit substantially if the FLRA could command greater deference from the federal judiciary".

Well, I'm pleased to report on our 20th Anniversary that this particular challenge is being met. As a result of a deliberate effort throughout the FLRA to strengthen the quality of decisions, we are today, a decade later, receiving greater deference from the courts.

Decisions issued during the past few years have been largely upheld (in whole or substantial part) by federal reviewing courts close to 85% of the time (16/19) -- at a far higher rate than in all of the preceding years (when the comparable percentage was closer to 50.) I hope those of you who read our decisions will agree that the Statute's meaning is in a more clear and stable condition now. And I hope we can keep it that way.

Since most parties litigating cases tend to care more about whether they've won or lost their most recent case, why should you, as practitioners of labor relations, care at all about the state of decisional law -- in general ?

Well, first, because clear and stable law makes it possible for the Authority to answer the questions you raise more quickly. And second, because settled precedent about what the law means, gives you firm ground on which to carry out your everyday workplace relationship.

This brings me to a second challenge that was also set for the FLRA around the time of its 10th Anniversary. This one was framed by a Government Accounting Office study of the federal sector labor relations program as a whole. The GAO concluded that this program was not working very well -- that it had become too adversarial, and bogged down by litigation, and dispute resolution mechanisms that were too lengthy, slow and complex.

Well, there are many reasons I could offer to explain WHY this was so -- including the contentious political environment facing collective bargaining in the 1980's, and the Statute itself. In its earliest years, the FLRA modeled itself on the National Labor Relations Board, and many federal labor law practitioners did their job by filing large numbers of cases. Even though, unlike the private sector, employers refusing to recognize unions were not a problem, you found plenty of things to battle about -- and each battle infected the union management relationship.

Over time, however, the differences between federal sector labor relations and private sector labor relations became evident, and the FLRA, federal unions, and agency management began charting their own course.

In 1995, the FLRA adopted an agency-wide statement that clearly describes our mission in the following way: to "exercise leadership under the [Statute] to promote stable, constructive labor - relations that contribute to a more effective Government".

This simple mission statement recognizes that while much of what we do involves enforcing the labor law, our objective -- whether we are investigating, prosecuting, or deciding cases, resolving bargaining impasses, or setting policy for the program -- is focused on labor relations.

If I can draw again upon President Kennedy's boat analogy: the FLRA sees its role as not only to be a port for boats after the seas turn stormy, but as a resource to help labor and management steer clear of the storm entirely.

To some extent, I'd like to make clear, this has been important throughout the FLRA's 20 years. However, early in our second decade, the FLRA began to broaden its emphasis on programs aimed at this goal.

In 1991, the Authority established an Office of Labor-Management Cooperation to encourage parties to work collaboratively. The Office of General Counsel expanded its outreach efforts to assist parties with labor relations problems before conflicts rose to the level of litigation -- indeed, Joe Swerdzewski, before his appointment as General Counsel, served as Counsel for this Special Outreach initiative.

In 1993, President Clinton's National Performance Review, and the issuance of his Executive Order 12871, added wind to these sails. These initiatives repositioned energy throughout the federal government. Agencies were directed to enter partnerships with unions to "champion ... change ..." so that they could "deliver the highest quality services to the American people."

These initiatives reflected the commitment of the CEO of federal management -- the President himself -- to a new approach by management, and a broader role for unions. This was done with critical support from the leadership of our largest federal unions.

The late John Sturdivant expressed his conviction that "through labor-management partnerships, if given the freedom, authority and autonomy to do our jobs, union members can save taxpayers money, rebuild their own morale and restore thefaith of people in their government." John also saw this as the way to "build a larger, stronger union for the 21st century." He must have had a crystal ball. And I expect he is relishing the recent headlines reporting growth in federal union membership and strength!

With this new energy behind labor-management partnership, the FLRA expanded its efforts -- throughout the regions. In OGC Headquarters. In the Office of ALJs. At the Panel.

And in 1996, the separate FLRA components joined together to establish the Collaboration and Alternative Dispute Resolution Program -- we call it "CADR"-- the first unified, Agency-wide program dedicated to applying alternative dispute resolution techniques at every step of a labor-management dispute.

These initiatives -- and others - bring interest-based approaches to how labor relations are conducted. They offer another way to resolve disputes, other than through costly and time-consuming litigation ending in an Authority decision on legal claims.

The contrast between a decision that is imposed on people who disagree, and a solution that is developed with and by them, reminds me of a story that former Speaker Tip O'Neill liked to tell about watching a group of kids play a Sunday afternoon baseball game.

When the batter hit a line drive into center field, and tried to stretch an easy single into a double, the Umpire called him out. Within seconds, all of his teammates jumped off the bench to protest. The Umpire, quickly assessing the commotion, felt the heat, and changed his mind - calling him safe.

As you can imagine, at that point everybody on the other team started to holler. After 10 minutes or so of considerable shouting and arguing on the field, the umpire sent the batter to first base. When the inning was over, Tip O'Neill, watching this with considerable surprise, went to the Umpire and said "I've been watching baseball my whole life, and I've never seen a call like that one. What happened?"

"I'll tell you, said the Umpire. When I saw that we weren't getting anywhere, I asked "How many of you think the runner was safe?" Nine players raised their hands. Then I asked, "How many of you think he was out?" The other nine raised their hands. Then I asked, "How many of you say he was safe when he rounded first base?" All 18 raised their hands, so I sent the runner back to first."

Well, I suspect there are some baseball traditionalists in the audience having trouble with this outcome -- and certainly it may not be the right approach for the World Series! But it does show how, when you involve the people who disagree with each other in finding the answer, and expand the type of questions they are asked -- beyond simply who is right and who is wrong -- you can come up with a surprising, creative, and constructive answer.

And maybe, just maybe, it will be the best answer for them.

* * * * * *

Labor relations traditionalists also have trouble seeing interest-based problem solving, built on trust between unions and management, as the way to conduct business. But the alternative -- of having a decision imposed after litigation -- rarely results in an answer that solves whatever problem was asserted as a legal claim.

I've often thought of the similarity between translating workplace problems into legal claims, on the one hand, and squeezing round pegs into square holes, on the other.

You, in effect, told us this in the customer survey we conducted last year. We asked you two very specific questions: First, whether the Authority's rulings decided the issues raised in the litigation; second, whether the rulings resolved the parties' dispute. There was a consistent wide gap between your answers to these two questions, confirming that while decisions can resolve legal issues; they rarely resolve disputes.

Decisions create precedent, they establish guidelines, they address parties' arguments, and they enforce the Statute. But they are very blunt instruments, which are rarely effective at fashioning solutions to the real problems that underlay the legal claims that are argued.

At the FLRA, we have implemented this central insight by main streaming collaborative dispute resolution in labor relations. Rather than see interest-based ways to settle disputes -- through, for example, mediation -- as simply an "alternative" to litigation.

We have recognized this as the primary method best suited to resolve workplace problems -- with litigation as the alternative -- to be pursued only where really necessary. Our goal should be to engage in effective dispute resolution -- which means matching the method best suited for resolving each particular dispute.

We have incorporated this basic principle, not only by expanding our CADR services, but by changing the way FLRA handles all of its cases -- through systematically revising our representation, ULP, impasse, and negotiability regulations over the past few years.

As the Vice President noted in his message, we have just received a Hammer Award for how we reinvented our ULP regulations. I'm also proud to let you know that our "Main streaming Collaborative Dispute Resolution" initiative was chosen as a semifinalist in the nationwide Innovations in American Government awards competition -- one of 98 out of more than 1,600 Federal, state, and local government applicants.

The way we've gone about creating CADR, revising our programs and regulations, and indeed convening this first-ever agency-wide conference, illustrates a third challenge the FLRA has met as it has grown into adulthood. This is the challenge of being three separate, necessarily independent, agency, joined together by Congress as one.

I'm pleased to report that we've learned how we can both respect the statutory lines between these components, and at the same time draw strength from each other to carry out our shared responsibility for making the federal labor relations program work as well as it possibly can. We've learned how to carve windows and doors in the walls that divide the Authority, the Office of the General Counsel, and the Panel.

We've learned how to be partners to make this program work. Joe, Betty -- it has been an honor to work with you as partners. I believe this has helped us to do a better job for all of you -- and the American people.

Meeting these three challenges is just one (or actually three) of the many positive signs as the FLRA enters its 21st year. Recognizing this does not mean to ignore, however, that our agency, and the federal labor relations program, still faces many difficult challenges.

One of these is how to strike the right balance between emphasizing legal rights and obligations, on the one hand, and emphasizing building strong relationships on the other. For both are essential components in federal sector collective bargaining. Which one dominates will change over time, and will depend largely on the reality in your particular agency.

In some federal workplaces, labor management partnerships are flourishing; in others, the battle lines are still drawn. In some organizations, wide-ranging pre-decisional involvement of unions is working; in others, unions are among the last to know when a decision is made.

In some Departments, negotiations between union and management regularly take place over such subjects as methods and means of accomplishing work. In others, despite the President's Executive Order, his executives strain to just say "No".

In some agencies, unions and management are even negotiating over subjects such as pay. But in still others, despite the Statute, there are changes in conditions of employment being implemented without any bargaining at all. You will undoubtedly be hearing lots more about these differences, and about the challenges ahead over the next two days.

In closing this plenary session, let me simply express my own firm belief, that the federal workplaces where management truly involves unions in partnership, and where unions are truly willing to act as a partner, are the ones that are most successful.

Someone once described a "fanatic" as a person who won't change her mind, and can't change the subject. During my five years as Chair of the FLRA, I plead guilty to being a fanatic on the subject of interest-based problem solving! It is, I believe, the best way to carry out a constructive labor relationship -- a way that the interests of unions and the federal employees they represent, the interests of managers, and the interests of the American public, can all be well-served.

I hope that this Conference will help each of you meet the collective bargaining challenges ahead in your organizations. The FLRA stands ready today to play its role, and I am confident that together we can build the federal labor relations program even stronger in the next millennium than it is as we commemorate this 20th anniversary today.

Thank you for participating in this Conference, and for listening so patiently this morning.